Justice Scalia and the Original Meaning of Originalism

humpty_dumpty

(I almost regret writing this post because it took a lot longer to write than I expected and I am afraid that I have ventured too deeply into unfamiliar territory. But having expended so much time and effort on this post, I must admit to being curious about what people will think of it.)

I resist the temptation to comment on Justice Scalia’s character beyond one observation: a steady stream of irate outbursts may have secured his status as a right-wing icon and burnished his reputation as a minor literary stylist, but his eruptions brought no credit to him or to the honorable Court on which he served.

But I will comment at greater length on the judicial philosophy, originalism, which he espoused so tirelessly. The first point to make, in discussing originalism, is that there are at least two concepts of originalism that have been advanced. The first and older concept is that the provisions of the US Constitution should be understood and interpreted as the framers of the Constitution intended those provisions to be understood and interpreted. The task of the judge, in interpreting the Constitution, would then be to reconstruct the collective or shared state of mind of the framers and, having ascertained that state of mind, to interpret the provisions of the Constitution in accord with that collective or shared state of mind.

A favorite originalist example is the “cruel and unusual punishment” provision of the Eighth Amendment to the Constitution. Originalists dismiss all arguments that capital punishment is cruel and unusual, because the authors of the Eighth Amendment could not have believed capital punishment to be cruel and unusual. If that’s what they believed then, why, having passed the Eighth amendment, did the first Congress proceed to impose the death penalty for treason, counterfeiting and other offenses in 1790? So it seems obvious that the authors of Eighth Amendment did not intend to ban capital punishment. If so, originalists argue, the “cruel and unusual” provision of the Eighth Amendment can provide no ground for ruling that capital punishment violates the Eighth Amendment.

There are a lot of problems with the original-intent version of originalism, the most obvious being the impossibility of attributing an unambiguous intention to the 50 or so delegates to the Constitutional Convention who signed the final document. The Constitutional text that emerged from the Convention was a compromise among many competing views and interests, and it did not necessarily conform to the intentions of any of the delegates, much less all of them. True, James Madison was the acknowledged author of the Bill of Rights, so if we are parsing the Eighth Amendment, we might, in theory, focus exclusively on what he understood the Eighth Amendment to mean. But focusing on Madison alone would be problematic, because Madison actually opposed adding a Bill of Rights to the original Constitution; Madison introduced the Bill of Rights as amendments to the Constitution in the first Congress, only because the Constitution would not have been approved without an understanding that the Bill of Rights that Madison had opposed would be adopted as amendments to the Constitution. The inherent ambiguity in the notion of intention, even in the case of a single individual acting out of mixed, if not conflicting, motives – an ambiguity compounded when action is undertaken collectively by individuals – causes the notion of original intent to dissolve into nothingness when one tries to apply it in practice.

Realizing that trying to determine the original intent of the authors of the Constitution (including the Amendments thereto) is a fool’s errand, many originalists, including Justice Scalia, tried to salvage the doctrine by shifting its focus from the inscrutable intent of the Framers to the objective meaning that a reasonable person would have attached to the provisions of the Constitution when it was ratified. Because the provisions of the Constitution are either ordinary words or legal terms, the meaning that would reasonably have been attached to those provisions can supposedly be ascertained by consulting the contemporary sources, either dictionaries or legal treatises, in which those words or terms were defined. It is this original meaning that, according to Scalia, must remain forever inviolable, because to change the meaning of provisions of the Constitution would allow unelected judges to covertly amend the Constitution, evading the amendment process spelled out in Article V of the Constitution, thereby nullifying the principle of a written constitution that constrains the authority and powers of all branches of government. Instead of being limited by the Constitution, judges not bound by the original meaning arrogate to themselves an unchecked power to impose their own values on the rest of the country.

To return to the Eighth Amendment, Scalia would say that the meaning attached to the term “cruel and unusual” when the Eighth Amendment was passed was clearly not so broad that it prohibited capital punishment. Otherwise, how could Congress, having voted to adopt the Eighth Amendment, proceed to make counterfeiting and treason and several other federal offenses capital crimes? Of course that’s a weak argument, because Congress, like any other representative assembly is under no obligation or constraint to act consistently. It’s well known that democratic decision-making need not be consistent, and just because a general principle is accepted doesn’t mean that the principle will not be violated in specific cases. A written Constitution is supposed to impose some discipline on democratic decision-making for just that reason. But there was no mechanism in place to prevent such inconsistency, judicial review of Congressional enactments not having become part of the Constitutional fabric until John Marshall’s 1803 opinion in Marbury v. Madison made judicial review, quite contrary to the intention of many of the Framers, an organic part of the American system of governance.

Indeed, in 1798, less than ten years after the Bill of Rights was adopted, Congress enacted the Alien and Sedition Acts, which, I am sure even Justice Scalia would have acknowledged, violated the First Amendment prohibition against abridging the freedom of speech and the press. To be sure, the Congress that passed the Alien and Sedition Acts was not the same Congress that passed the Bill of Rights, but one would hardly think that the original meaning of abridging freedom of speech and the press had been forgotten in the intervening decade. Nevertheless, to uphold his version of originalism, Justice Scalia would have to argue either that the original meaning of the First Amendment had been forgotten or acknowledge that one can’t simply infer from the actions of a contemporaneous or nearly contemporaneous Congress what the original meaning of the provisions of the Constitution were, because it is clearly possible that the actions of Congress could have been contrary to some supposed original meaning of the provisions of the Constitution.

Be that as it may, for purposes of the following discussion, I will stipulate that we can ascertain an objective meaning that a reasonable person would have attached to the provisions of the Constitution at the time it was ratified. What I want to examine is Scalia’s idea that it is an abuse of judicial discretion for a judge to assign a meaning to any Constitutional term or provision that is different from that original meaning. To show what is wrong with Scalia’s doctrine, I must first explain that Scalia’s doctrine is based on legal philosophy known as legal positivism. Whether Scalia realized that he was a legal positivist I don’t know, but it’s clear that Scalia was taking the view that the validity and legitimacy of a law or a legal provision or a legal decision (including a Constitutional provision or decision) derives from an authority empowered to make law, and that no one other than an authorized law-maker or sovereign is empowered to make law.

According to legal positivism, all law, including Constitutional law, is understood as an exercise of will – a command. What distinguishes a legal command from, say, a mugger’s command to a victim to turn over his wallet is that the mugger is not a sovereign. Not only does the sovereign get what he wants, the sovereign, by definition, gets it legally; we are not only forced — compelled — to obey, but, to add insult to injury, we are legally obligated to obey. And morality has nothing to do with law or legal obligation. That’s the philosophical basis of legal positivism to which Scalia, wittingly or unwittingly, subscribed.

Luckily for us, we Americans live in a country in which the people are sovereign, but the power of the people to exercise their will collectively was delimited and circumscribed by the Constitution ratified in 1788. Under positivist doctrine, the sovereign people in creating the government of the United States of America laid down a system of rules whereby the valid and authoritative expressions of the will of the people would be given the force of law and would be carried out accordingly. The rule by which the legally valid, authoritative, command of the sovereign can be distinguished from the command of a mere thug or bully is what the legal philosopher H. L. A. Hart called a rule of recognition. In the originalist view, the rule of recognition requires that any judicial judgment accord with the presumed original understanding of the provisions of the Constitution when the Constitution was ratified, thereby becoming the authoritative expression of the sovereign will of the people, unless that original understanding has subsequently been altered by way of the amendment process spelled out in Article V of the Constitution. What Scalia and other originalists are saying is that any interpretation of a provision of the Constitution that conflicts with the original meaning of that provision violates the rule of recognition and is therefore illegitimate. Hence, Scalia’s simmering anger at decisions of the court that he regarded as illegitimate departures from the original meaning of the Constitution.

But legal positivism is not the only theory of law. F. A. Hayek, who, despite his good manners, somehow became a conservative and libertarian icon a generation before Scalia, subjected legal positivism to withering criticism in volume one of Law Legislation and Liberty. But the classic critique of legal positivism was written a little over a half century ago by Ronald Dworkin, in his essay “Is Law a System of Rules?” (aka “The Model of Rules“) Dworkin’s main argument was that no system of rules can be sufficiently explicit and detailed to cover all possible fact patterns that would have to be adjudicated by a judge. Legal positivists view the exercise of discretion by judges as an exercise of personal will authorized by the Sovereign in cases in which no legal rule exactly fits the facts of a case. Dworkin argued that rather than an imposition of judicial will authorized by the sovereign, the exercise of judicial discretion is an application of the deeper principles relevant to the case, thereby allowing the judge to determine which, among the many possible rules that could be applied to the facts of the case, best fits with the totality of the circumstances, including prior judicial decisions, the judge must take into account. According to Dworkin, law and the legal system as a whole is not an expression of sovereign will, but a continuing articulation of principles in terms of which specific rules of law must be understood, interpreted, and applied.

The meaning of a legal or Constitutional provision can’t be fixed at a single moment, because, like all social institutions, meaning evolves and develops organically. Not being an expression of the sovereign will, the meaning of a legal term or provision cannot be identified by a putative rule of recognition – e.g., the original meaning doctrine — that freezes the meaning of the term at a particular moment in time. It is not true, as Scalia and originalists argue, that conceding that the meaning of Constitutional terms and provisions can change and evolve allows unelected judges to substitute their will for the sovereign will enshrined when the Constitution was ratified. When a judge acknowledges that the meaning of a term has changed, the judge does so because that new meaning has already been foreshadowed in earlier cases with which his decision in the case at hand must comport. There is always a danger that the reasoning of a judge is faulty, but faulty reasoning can beset judges claiming to apply the original meaning of a term, as Chief Justice Taney did in his infamous Dred Scot opinion in which Taney argued that the original meaning of the term “property” included property in human beings.

Here is an example of how a change in meaning may be required by a change in our understanding of a concept. It may not be the best example to shed light on the legal issues, but it is the one that occurs to me as I write this. About a hundred years ago, Bertrand Russell and Alfred North Whitehead were writing one the great philosophical works of the twentieth century, Principia Mathematica. Their objective was to prove that all of mathematics could be reduced to pure logic. It was a grand and heroic effort that they undertook, and their work will remain a milestone in history of philosophy. If Russell and Whitehead had succeeded in their effort of reducing mathematics to logic, it could properly be said that mathematics is really the same as logic, and the meaning of the word “mathematics” would be no different from the meaning of the word “logic.” But if the meaning of mathematics were indeed the same as that of logic, it would not be the result of Russell and Whitehead having willed “mathematics” and “logic” to mean the same thing, Russell and Whitehead being possessed of no sovereign power to determine the meaning of “mathematics.” Whether mathematics is really the same as logic depends on whether all of mathematics can be logically deduced from a set of axioms. No matter how much Russell and Whitehead wanted mathematics to be reducible to logic, the factual question of whether mathematics can be reduced to logic has an answer, and the answer is completely independent of what Russell and Whitehead wanted it to be.

Unfortunately for Russell and Whitehead, the Viennese mathematician Kurt Gödel came along a few years after they completed the third and final volume of their masterpiece and proved an “incompleteness theorem” showing that mathematics could not be reduced to logic – mathematics is therefore not the same as logic – because in any axiomatized system, some true propositions of arithmetic will be logically unprovable. The meaning of mathematics is therefore demonstrably not the same as the meaning of logic. This difference in meaning had to be discovered; it could not be willed.

Actually, it was Humpty Dumpty who famously anticipated the originalist theory that meaning is conferred by an act of will.

“I don’t know what you mean by ‘glory,’ ” Alice said.
Humpty Dumpty smiled contemptuously. “Of course you don’t—till I tell you. I meant ‘there’s a nice knock-down argument for you!’ ”
“But ‘glory’ doesn’t mean ‘a nice knock-down argument’,” Alice objected.
“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to meanan—neither more nor less.”
“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master—that’s all.”

In Humpty Dumpty’s doctrine, meaning is determined by a sovereign master. In originalist doctrine, the sovereign master is the presumed will of the people when the Constitution and the subsequent Amendments were ratified.

So the question whether capital punishment is “cruel and unusual” can’t be answered, as Scalia insisted, simply by invoking a rule of recognition that freezes the meaning of “cruel and unusual” at the presumed meaning it had in 1790, because the point of a rule of recognition is to identify the sovereign will that is given the force of law, while the meaning of “cruel and unusual” does not depend on anyone’s will. If a judge reaches a decision based on a meaning of “cruel and unusual” different from the supposed original meaning, the judge is not abusing his discretion, the judge is engaged in judicial reasoning. The reasoning may be good or bad, right or wrong, but judicial reasoning is not rendered illegitimate just because it assigns a meaning to a term different from the supposed original meaning. The test of judicial reasoning is how well it accords with the totality of judicial opinions and relevant principles from which the judge can draw in supporting his reasoning. Invoking a supposed original meaning of what “cruel and unusual” meant to Americans in 1789 does not tell us how to understand the meaning of “cruel and unusual” just as the question whether logic and mathematics are synonymous cannot be answered by insisting that Russel and Whitehead were right in thinking that mathematics and logic are the same thing. (I note for the record that I personally have no opinion about whether capital punishment violates the Eighth Amendment.)

One reason meanings change is because circumstances change. The meaning of freedom of the press and freedom of speech may have been perfectly clear in 1789, but our conception of what is protected by the First Amendment has certainly expanded since the First Amendment was ratified. As new media for conveying speech have been introduced, the courts have brought those media under the protection of the First Amendment. Scalia made a big deal of joining with the majority in Texas v. Johnson a 1989 case in which the conviction of a flag burner was overturned. Scalia liked to cite that case as proof of his fidelity to the text of the Constitution; while pouring scorn on the flag burner, Scalia announced that despite his righteous desire to exact a terrible retribution from the bearded weirdo who burned the flag, he had no choice but to follow – heroically, in his estimation — the text of the Constitution.

But flag-burning is certainly a form of symbolic expression, and it is far from obvious that the original meaning of the First Amendment included symbolic expression. To be sure some forms of symbolic speech were recognized as speech in the eighteenth century, but it could be argued that the original meaning of freedom of speech and the press in the First Amendment was understood narrowly. The compelling reason for affording flag-burning First Amendment protection is not that flag-burning was covered by the original meaning of the First Amendment, but that a line of cases has gradually expanded the notion of what activities are included under what the First Amendment calls “speech.” That is the normal process by which law changes and meanings change, incremental adjustments taking into account unforeseen circumstances, eventually leading judges to expand the meanings ascribed to old terms, because the expanded meanings comport better with an accumulation of precedents and the relevant principles on which judges have relied in earlier cases.

But perhaps the best example of how changes in meaning emerge organically from our efforts to cope with changing and unforeseen circumstances rather than being the willful impositions of a higher authority is provided by originalism itself, because, “originalism” was originally about the original intention of the Framers of the Constitution. It was only when it became widely accepted that the original intention of the Framers was not something that could be ascertained, that people like Antonin Scalia decided to change the meaning of “originalism,” so that it was no longer about the original intention of the Framers, but about the original meaning of the Constitution when it was ratified. So what we have here is a perfect example of how the meaning of a well-understood term came to be changed, because the original meaning of the term was found to be problematic. And who was responsible for this change in meaning? Why the very same people who insist that it is forbidden to tamper with the original meaning of the terms and provisions of the Constitution. But they had no problem in changing the meaning of their doctrine of Constitutional interpretation. Do I blame them for changing the meaning of the originalist doctrine? Not one bit. But if originalists were only marginally more introspective than they seem to be, they might have realized that changes in meaning are perfectly normal and legitimate, especially when trying to give concrete meaning to abstract terms in a way that best fits in with the entire tradition of judicial interpretation embodied in the totality of all previous judicial decisions. That is the true task of a judge, not a pointless quest for original meaning.

23 Responses to “Justice Scalia and the Original Meaning of Originalism”


  1. 1 JKH March 14, 2016 at 6:38 am

    Very interesting post and food for thought.

    Including the connection with your post on Keynes and saving/investment.

    For completeness, I would have enjoyed a reference to the treatment of accounting identities in Principia Mathematica.
    🙂

  2. 2 Hugo André March 14, 2016 at 3:17 pm

    Certainly there are large flaws with Scalia’s justification for using originalism but that is very different from saying that there are no good reasons for this doctrine.

    You argue that the interpretation of laws should change as the meaning of the terms used in it develop but I greatly doubt that would lead to a functioning legal system. What if the meaning of the terms do not change or if they change in the wrong ways? Relying on the changing meanings of words to be a good representation of changes in societal ethics seems optimistic in the extreme. It may be true, as you say, that the adjustments made to laws are not subject to the judges judgement but in that case the changes will be arbitrary.

    I’ll use the word “gay” as an example (because it’s the first word that comes to mind, which has changed greatly over time). What if the Bill of Rights had included a line that said “The main purpose of the government should be to promote gayness among the populace” i.e. the government should try to make people happy. According to the principles that you (seem to) espouse, this would legally oblige today’s government to make people homosexual. Clearly that’s a ridiculous idea.

    A far more beneficial system in my opinion would be one that applies originalism but where changes are made to the constitution whenever sufficiently large changes have occurred in moral standards and a very large majority of the population are in favour of said change. Hardly an original opinion, I know.

  3. 3 Frank Restly March 14, 2016 at 4:15 pm

    David,

    Gotta agree with Hugo here. From above:

    “Realizing that trying to determine the original intent of the authors of the Constitution (including the Amendments thereto) is a fool’s errand…”

    I disagree that trying to determine the original intent is a “fool’s errand”. Obviously you can’t go back and interview the authors, but those authors have published other works. Insights into intent and meaning can be discerned from those other writings. For instance, the collected writings of James Madison can be found here:

    http://oll.libertyfund.org/titles/1933

    “…many originalists, including Justice Scalia, tried to salvage the doctrine by shifting its focus from the inscrutable intent of the Framers to the objective meaning that a reasonable person would have attached to the provisions of the Constitution when it was ratified…”

    I don’t believe Scalia did anything of the sort. It is reasonable to think that sufficient writings by the framers of the Constitution do not exist to dissect every part and parcel of the Constitution. And so, using other period sources (dictionaries, words in common usage, etc.) can be informative in discerning what the framers intended.

    Fortunately for us, the framers of the Constitution avoided slang terms of the time period, for instance:

    https://dralun.wordpress.com/2015/01/23/fart-catchers-and-duck-fers-the-world-of-18th-century-slang/

    Servant – Fart Catcher
    Innkeeper – Bluffer

  4. 4 Benjamin Cole March 14, 2016 at 5:36 pm

    Thoughtful blogging.

    As for strict constructionists, consider that our Founding Fathers loathed, detested and reviled the idea of a standing military. Today’s professional or mercenary hyper-mobilized military would be an anathema to our Founding Fathers.

    So we are strict constructionists except when we are not.

  5. 5 David Glasner March 14, 2016 at 7:06 pm

    JKH, Thanks. I can’t tell if you were being facetious in the second paragraph or only the third.

    Hugo, All common-law, legal systems evolve based on evolving traditions of meaning and principles. At any moment in time, there is always some uncertainty about what terms mean, and judges resolve those uncertainties as they go along, but each new resolution creates the opportunity for further uncertainty and further development. What you see as instability is actually the most stable legal system that could be imagined because change is nearly always incremental with only occasional situations in which judges have to make a drastic change to accommodate a change in circumstances. A better example than the one that you give, which is using a word clearly out of context, is what the meaning of the words “equal protection” in the fourteenth amendment meant. It is questionable whether those words were intended to prohibit segregated public facilities and it is unlikely that they were understood at the time to prohibit segregated public facilities. The Supreme Court infamously ruled in the 1896 case of Plessy v. Ferguson that blacks could be compelled to sit in separate segregated cars on railroads even though they were common carriers. It was accepted that blacks were inferior and not equal and therefore whatever equal protection meant it did not rule out segregation by race. Eventually, courts began to chip away at the notion of separate but equal, so the landmark case of Brown v. Board of Education case in 1954 did not emerge from nowhere. Clearly, judges came to understand that the concept of equal protection was inconsistent with racial segregation. That was judicial progress. If Scalia had his way and the constitution had to be amended, legal segregation would still be Constitutional.

    Frank, I didn’t want to go into a full discussion of original intent. The problem with original intent is that no one can possibly know all the implications of any abstract principle. So if I make the claim that some abstract principle is true, I may not fully understand what it is that I am in favor of. But if I say that I am in favor of the principle, then I am stuck with the consequences no matter what my intention was.

    Benjamin, Thanks. But I don’t claim to be a strict constructionist, so I’m in the clear on that one.

  6. 6 Frank Restly March 14, 2016 at 8:01 pm

    David,

    I get that. I just don’t think any attempt to discern original intent should be abandoned entirely or considered pointless. It is a useful starting point.

  7. 7 David Glasner March 14, 2016 at 8:23 pm

    Frank, I’m OK with that. Scalia wanted to make it the starting and ending point.

  8. 8 gofx March 14, 2016 at 8:35 pm

    David, I find your statement, “The test of judicial reasoning is how well it accords with the totality of judicial opinions and relevant principles from which the judge can draw in supporting his reasoning.” to be nearly meaningless, or highly circular. Plessy would never be reversed if one stayed with the “totality of judicial opinions”. The test of judicial reasoning should be the logical coherency of the argument. And the “principles” of which you speak would be those of the Constitution. It is not “how can we make the Constitution fit today’s particular situations?” rather it is “how can we understand today’s situations with respect to the Constitution. The abuse of the “Commerce” and “Necessary and Proper” clauses is a prime example of “the totality of judicial opinions” that has left the country unrecognizable to any of the signers of the Constitution. I am not saying that there can be no judgment involved (they do call them “judges”), but originalism provides an anchor for liberty, rather than having liberty just be driftwood in the sea of judicial opinion.

  9. 9 JKH March 14, 2016 at 8:48 pm

    David

    Not the second. It’s an interesting connection in the way you think about things. I’d like to ponder it for a future round of identity chatter.

    And by fantastic association slightly less than 100 per cent the third – my personal view on the relationship between economics, mathematics, and accounting.

  10. 10 Hugo André March 15, 2016 at 6:43 am

    The fact that the meaning of the term “equal protection” has changed in tandem with public morals since the 18th century is mostly due to luck, in my view. It is for example conceivable that the word “equal” could have kept its old meaning (equal only for whites) but developed into a pejorative term. The meaning of words change in often arbitrary ways for obscure historical reasons and it is also fully plausible that the meaning of the word “equal” could have changed into something that we today would consider abhorrent.

    Your assumption seems to be that changes in ethical standards will always equal changes in the meaning of certain words (such as the word “equal”). Is there any reason for believing that it will always be so? It seems like a very risky basis for a legal system.

    What if the bill of rights would have been more explicit in explaining what it meant by “equal protection”?

    On the matter of whether judges reinterpret laws in ways that go beyond changes in the meanings of words, I think there is some truth to this but that rather than interpreting the wording in accordance with their own values they reinterpret them to correspond with the values that exist in contemporary society. Contrary to Scalia I would argue that this has been a very good thing and, indeed, is the only thing that keeps the constitutional part of the legal system from breaking down.

    To reiterate, I do not support Scalia’s position or his morals and I think it would be considerably better if the constitution was amended every once in a while. How can a 200-and-some year old document be such a large part of modern American society anyway?

    My apologies, this comment became much longer than intended.

  11. 11 gofx March 15, 2016 at 9:17 am

    Hugo Andre….The Constitution HAS been amended every once in a while. The Constitution contains it’s own updating mechanism.

  12. 12 Frank Restly March 15, 2016 at 10:11 am

    Interesting bit of Constitutional history.

    https://en.wikipedia.org/wiki/Congressional_Apportionment_Amendment

    This amendment was passed by eleven states (the last being Kentucky in 1792). There was no time limit placed on its passage and so it could conceivably become an amendment to the Constitution.

    “Senate version – September 9, 1789:
    After the first enumeration, required by the first article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred; to which number one Representative shall be added for every subsequent increase of forty thousand, until the Representatives shall amount to two hundred, to which number one Representative shall be added for every subsequent increase of sixty thousand persons.”

    The House version of the bill is on the same Wiki page.

    As of the 2010 census, California has a population of about 37 million people.

    And so if implemented, California would have:
    100 * 30,000 = 3 million
    100 * 40,000 = 4 million
    500 * 60,000 = 30 million

    3 million + 4 million + 30 million = 37 million people
    100 + 100 + 500 = 700 House of Representative members

    Based upon 2010 Census data found here:
    https://en.wikipedia.org/wiki/2010_United_States_Census

    Using the framers original intent, the size of the House of Representatives would be 7,885 members.

    And you thought the Federal Government was big and bloated now. Imagine a House of Representatives with almost eight thousand members.

    Moral of the story: Even the framers of the Constitution can get it wrong once and a while.

  13. 13 ed March 15, 2016 at 11:57 am

    Stick to your day job, Bro!

  14. 14 David Glasner March 15, 2016 at 12:04 pm

    ed, Well you could have at least inserted a smiley face, Bro!🙂

  15. 15 Hugo André March 15, 2016 at 3:08 pm

    @gofx Of course it has been but the changes are tiny considering the age of the constitution and the extent to which morals and beliefs have shifted since it was written. (I didn’t want to make my already lengthy comment even longer by adding more extraneous details.)

  16. 16 gofx March 15, 2016 at 9:28 pm

    Hugo Andre. I don’t know what the optimal rate of change of the constitution with respect to the rate of change or “morals and beliefs” should be. The Prohibition episode was an amazingly fast round trip. The Constitiional updating mechanism is not time based, it is based on the intensity of the change in beliefs.

  17. 17 David Glasner March 16, 2016 at 1:34 pm

    gofx, What I mean by the totality of judicial opinions is a judge must in principle reconcile his decision with all previous decisions that have not been vacated or otherwise explicitly repudiated. There inevitably are inconsistencies between the previous decisions and the judge deciding a new case must either reconcile the decisions in some way or explain why a previous decision can’t be followed. To use a somewhat far-fetched analogy, it’s a bit like finding the least square line through a scatter of points. You are not finding the solution to a set of equations, because there are too many degrees of freedom. You are finding the best solution to that set of equations. Some decisions may be very far from the new decision, they are outliers and that may be given little or no weight in the case at hand.

    The test of judicial reasoning cannot be the logical coherence of the argument in some abstract sense, because the law must be an ongoing tradition, so judicial reasoning has to take account of the rulings of previous judges. It was Justice Holmes who wrote in his book The Common Law “The life of the law has not been logic: it has been experience.” A judge is bound by precedent as much as by the principles of the constitution and the principles of the law in general. The judge has to take them all into account, but doing so can’t be done in some mechanical or cookbook fashion. And sometimes, when the previous decisions are untenable, as was the Plessy v. Ferguson decision, they have to be overturned.

    It is a mistake to think that there are any magic bullets, like originalism, that will protect liberty if only we can get judges to follow the instructions. There are no magic bullets, and originalism has its own set of problems. Originalism did not prevent Dred Scot, which is not to say that it caused Dred Scot, but it certainly did not prevent it. Abraham Lincoln showed that Dred Scot was contrary to the original understanding of the Constitution in his great Cooper Union Speech. Watch Sam Waterston’s reenactment here. The point is just that bad judging is always possible whatever judicial philosophy you adopt.

    JKH, I guess I don’t get what connection you see between this post and the one on Keynes and savings and investment.

    Hugo, There are changes in meaning that occur simply in the normal course of the evolution in language. Those changes have nothing to do with what I’m talking about. I’m talking about the meaning of abstract terms like equality or due process. The meanings of those terms may change as the result of careful analysis of the implications of those concepts when applied to actual situations. The original meaning attached to terms like equality or “cruel and unusual” may have been beset by internal conflicts and inconsistencies that only became apparent over time but were not apparent at the time of that those terms were introduced into the Constitution. Because these defects of understanding were not originally apparent, it is necessary for the understanding to be changed to eliminate the defects or inconsistencies. At the time the fourteenth amendment was passed, white supremacy was taken for granted and equality was interpreted in a way that made it consistent with white supremacy. The courts no longer accept white supremacy as even a tacit assumption. So the meaning of equality had to be adjusted accordingly.

    gofx, Legal segregation would never have been outlawed by Consitutional Amendment.

    Frank, Where would we even put 7885 representatives?

  18. 18 Frank Restly March 16, 2016 at 2:18 pm

    David,

    “Frank, Where would we even put 7885 representatives?”

    https://en.wikipedia.org/wiki/Verizon_Center

    Capacity crowd for hockey is 18,506. For basketball it is 20,356. The Wizards aren’t that good, and the Capitals haven’t won anything in forever. Might as well get some use out of the building.

  19. 19 gofx March 16, 2016 at 8:45 pm

    David,
    Well maybe we are just debating over weights. I’ll reformat your regression example into the Bayesian framework, with the “prior” being originalism, and let’s say your “judicial experience” being the likelihood. In essence, the “posterior” is a weighting of the prior and likelihood with the weights usually a function of the relative variances. The framers of the constitution put a “sharp” prior on some of the more basic principles. It takes a lot of data to overcome that prior. They probably did that because it was a pretty good (remarkable!) document. And of course, judicial data is all over the place, to wit watch decisions on the same issue conflict as they work their way through different federal courts. And the increase in Federal power conferred by the Court over the last 80 years actually deprives us of the experiential data that could be gained by letting states remain, “the laboratories of democracy”. Judges are fallable, biased human beings. The founders knew human nature. In fact they knew that they themselves would be tempted to abuse power when they were in government, and it happened! We need anchors! For an example of what happens without anchors see Great Britain and the erosion of free speech there. Regarding your comment on segregation, “never” is a long time.

  20. 20 JKH March 17, 2016 at 11:57 am

    David

    I’m referring to one of the 3 related posts noted explicitly at the bottom of this post (Sumner etc.)

    It’s about Keynes’ saving investment identity – and you make the connection explicitly yourself.

  21. 21 David Glasner March 17, 2016 at 5:10 pm

    gofx, Judicial decisions are not all over the place. If they were the common law could never have evolved. Judges are constantly trying to reconcile current decisions with the previous decisions by which they are bound, and eventually the highest court in each jurisdiction must reconcile the differences among the decisions among lower courts. Of course at any time, there are many inconsistencies, but there is a constant process of reconciling conflicts taking place at the same time that new conflicts are emerging. So there is a dynamic process that results in the evolution, growth and development of legal rules and principles. This is an extraordinarily healthy and dynamic process of law-making with significant libertarian tendencies. It does not depend on every judge getting right every time, but on there being a lot of judges each of whom has a role in the larger system. The anti-liberal tendencies in Great Britain that you dislike are not mainly the fault of the courts and the judges, but of the absolute supremacy of Parliament and the absence of effective of judicial review to limit the excesses of Parliament.

    JKH, Thanks for reminding me of what I had written in my earlier post. I think that I may have expressed myself more cogently the first time than I did in this post, but you and others can judge for themselves. WordPress somehow figures out connections between new posts and earlier ones that I myself have already forgotten. I should start paying attention to these links.

  22. 22 Philo March 21, 2016 at 7:44 pm

    Changing the meaning of a word, such as you alleged happened with ‘originalism’, is a dubious practice, since it may well engender confusion. But in this case it seems acceptable: the term itself is very convenient and suggestive; and once everyone realizes that the doctrine it was coined to stand for is defective, so that almost no one holds that doctrine, it seems quite proper to make the term stand for a related doctrine that is plausible and popular. I take it Scalia would agree with this, and why should he not? But no doubt he would add that it would be quite improper for a *judge*, in arriving at a *legal decision*, thus freely to reinterpret the terms used in a piece of *legislation*. And in this, it seems to me, he would be quite right.

  23. 23 Bob Hall April 1, 2016 at 3:38 pm

    I’m surprised that the supreme anti-Scalia, Oliver Wendell Holmes, is mentioned only once in the responses. Holmes wrote, “A word is not a crystal, transparent and unchanged; it is the skin of a living thought and may vary greatly in color and content according to the circumstances and time in which it is used.” Towne v. Eisner (1918). The reason the United States is the world’s oldest democratic republic is because its Constitution and, especially, its Bill of Rights are deliberately vague restrictions on government power that have been wisely interpreted to permit adaptation to a vibrant and changing society.


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About Me

David Glasner
Washington, DC

I am an economist in the Washington DC area. My research and writing has been mostly on monetary economics and policy and the history of economics. In my book Free Banking and Monetary Reform, I argued for a non-Monetarist non-Keynesian approach to monetary policy, based on a theory of a competitive supply of money. Over the years, I have become increasingly impressed by the similarities between my approach and that of R. G. Hawtrey and hope to bring Hawtrey's unduly neglected contributions to the attention of a wider audience.

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